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Buying the Allegiance of Supreme Court Justices?

Posted By Hans von Spakovsky On February 24, 2012 @ 8:19 am In Featured | Comments Disabled

If you want to see an illustrative example of Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer making decisions based on their personal ideologies and political opinions—as opposed to the actual evidence submitted in the cases before them—look no further than an order issued February 17 in American Tradition Partnership v. Bullock.

Justice Anthony Kennedy issued a stay of the December 30 decision of the Montana Supreme Court, because the court defied the Supreme Court’s ruling in Citizens United, in which the Supreme Court found that a ban on independent political expenditures by corporations and unions was a violation of the First Amendment. The Montana court reinstated a state ban on independent political expenditures by corporations that had been thrown out as unconstitutional by a lower court relying on Citizens United.

The Montana Supreme Court tried to differentiate its state law from the federal ban in a tendentious decision that is a marvel of disingenuous and deceptive reasoning. The court spent almost 40 pages trying to explain why it could ignore the Supreme Court’s ruling and why the Montana ban was justified. As the dissenting judge, James Nelson, said, “the Supreme Court has spoken,” and Montana’s “judiciary and elected officers are bound to accept and enforce the Supreme Court’s ruling—in the same way that this Court demands obedience to its rulings, like them or not.”

According to Nelson, the Montana court was clearly trying to “send a message” or be the next “test case” before the Supreme Court to try and get Citizens United overturned. Nelson praised the “well-reasoned and courageous—though politically unpopular—decision” of the lower court tossing out Montana’s ban. Justice Kennedy, who authored the Citizens United decision, issued a stay of the Montana Supreme Court’s decision “pending the timely filing and disposition of a petition for a writ of certiorari,” a stay warranted by the high probability that an appeal by the losing party will succeed.

But what is very revealing is the “Statement” that was added to the stay order by Ginsburg and joined by Breyer. The unusual “Statement” claims that Montana’s experience “and experience elsewhere” since the Citizens United decision “make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’” The two justices joined the stay because a petition for certiorari “will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

What evidence is there before Justices Ginsburg and Breyer that the allegiance of candidates is being bought? The misinformed editorial pages of The New York Times? The propaganda spewed by MSNBC about Citizens United? And what evidence is there of “corruption” by corporations because of independent expenditures? There is none.

And why is there no mention whatsoever of spending by labor unions, which tend to spend much larger sums than for-profit corporations?

We have seen an uptick in the amount of robust political speech since the Citizens United decision, but apparently the justices believe that more political speech amounts to “corruption.” They see no problem in crippling First Amendment rights and limiting political speech. They apparently believe that protected political activity should be curtailed because it supposedly “buys” the allegiance of candidates.

Of course, the money spent by the so-called super PACs the justices are decrying is, so far in this election cycle, still dwarfed by the amount of money that just one candidate—Barack Obama—has raised for his political campaign. Super PACS (liberal and conservative combined) have spent only $54 million in the 2012 cycle. Yet as of December 2011, President Obama had raised more than $125 million.

It bears looking at two of the plaintiffs in the Montana case—whose speech the justices want to restrict. American Tradition Partnership calls itself “a no-compromise grassroots organization dedicated to fighting the radical environmentalist agenda,” while the Montana Shooting Sports Association tries to protect Second Amendment rights. No wonder the justices are concerned—why would they want conservative organizations like these to speak politically?

If we need anything, it is even more independent political speech by corporations, unions, and issue organizations. That is why we have a First Amendment: to encourage and protect political speech and activity by all who want to participate in our democratic dialogue.


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